QUESTION SEVEN. 119 



in Nova Scotia, held that purchasing bait in British waters was a 

 breach of the existing statutes; and in the other, the " White Fawn,'' 

 Judge Hazen, of New Brunswick, held that it was not. The statutes 

 then in force were the British statute 59 Geo. Ill, cap. 38 (1819) 

 (App., p. 565), and the Canadian statutes 31 Viet, cap. 61 (1868) 

 (App., p. 628), and 33 Viet., cap. 15 (1870) (App., p. 630), which 

 provided penalties against foreign vessels 



found fishing, or preparing to fish, or to have been fishing 



in British waters. One judge thought that purchasing bait was 



" preparing to fish," and the other judge thought it was not. 



LORD KIMBERLEY, 1871. 



1871. In this year, in the course of prolonged negotiations for a 

 renewal of reciprocal trade arrangements between Canada and the 

 United States, as well as for the settlement of the Alabama claims, 

 a despatch was written by Lord Kimberley (Colonial Secretary) to 

 the Governor-General of Canada to which it seems right to refer. 

 In the course of that despatch his Lordship dealt with the right to 

 exclude American fishermen to a distance of 3 miles from the coasts 

 and the question of the extent of bays and creeks, and then pro- 

 ceeded as follows (App., p. 246) : 



The exclusion of American fishermen from resorting to Canadian 

 ports, " except for the purpose of shelter and of repairing damages 

 therein, of purchasing wood, and of obtaining water," might be 

 warranted by the letter of the treaty of 1818, and by the terms of the 

 Imperial Act 59 George III, cap. 38, but Her Majesty's Government 

 feel bound to state that it seems to them an extreme measure, incon- 

 sistent with the general policy of the Empire, and they are disposed 



to concede this point to the United States' Government, under 

 132 such restrictions as may be necessary to prevent smuggling, 



and to guard against any substantial invasion of the exclusive 

 rights of fishing which may be reserved to British subjects. 



It is obvious that the passage has no bearing on the question now 

 under discussion. It deals not with the alleged rights of trading 

 claimed for fishing-vessels on the treaty coasts, but with the proviso 

 for entry by American fishermen for the purpose of shelter, of re- 

 pairing damages and of obtaining wood and water, into the bays 

 and harbours, with regard to which the United States renounced all 

 liberties theretofore claimed in respect of the taking, drving or cur- 

 ing of fish b} American fishermen. Lord Kimberley merely states 

 that Her Majesty's Government are disposed to relax the enforce- 

 ment of the terms of the proviso under such restrictions as are 

 necessary to prevent smuggling and to obviate any invasion of the 

 exclusive rights of British subjects to fish in these waters. No 

 arrangement to this effect was ever arrived at, and so far from 



